EVENTS

The constitutionality of killing non-combatant US citizens within the US

Senator Rand Paul conducted an old-fashioned six thirteen-hour long talking filibuster on the floor of the US Senate against the nomination of John Brennan to head the CIA because he was rightly concerned that the Obama administration would not state unequivocally that the answer was ‘no’ to the question “Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial?”

As David Weigel reports, the filibuster failed to stop the advance of Brennan’s nomination but it was a success in that it has brought this issue much greater attention than I am sure that Obama would have liked.

What followed, for more than six hours, was a plain-talking series of arguments, precedents, and hypotheticals about an opaque issue: Can the executive branch assassinate American citizens without due process? “The 1947 National Security Act says the CIA doesn’t operate in our country,” Paul said. “Nobody questions if planes are flying towards the Twin Towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled. They don’t get their day in court. But if you are sitting in a cafeteria in Dearborn, Mich., if you happen to be an Arab-American who has a relative in the Middle East and you communicate with them by email and somebody says, ‘Oh, your relative is someone we suspect of being associated with terrorism,’ is that enough to kill you?”

Meanwhile, Attorney General Eric Holder had his biannual appearance before the Senate Judiciary Committee and was grilled by Senator Ted Cruz (R-Texas) on this issue. For the longest time, Holder tried to evade giving a direct answer to Cruz’s simple and direct question: “If an individual is sitting quietly at a café in the United States, in your legal judgment, does the Constitution allow a U.S. citizen on U.S. soil to be killed by a drone?”

Holder tried to play it cute by pretending he didn’t understand the question and dodging and weaving but Cruz was sharp and relentless in demanding an answer and at the end Holder conceded, sort of, that it was unconstitutional and that is what he had been saying all along. The exchange is very revealing and worth watching.

Holder said it in such a way that he perhaps thought he could backtrack later but Cruz promises to introduce legislation this week to “make clear that the US government cannot kill a US citizen on US soil absent an imminent threat”. It will be interesting to see how people line up on that issue.

If Rand Paul and his chums really gave a shit about drone strikes and other CIA malfeasance, they would have proposed and sponsored legislation to de-authorize and/or defund it. Have any of that lot done so? Or do they not read their own job descriptions?

Rand Paul’s gestures of protest are every bit as empty as his daddy’s.

@33 Bee
Brennen has confirmed that there is a memo that lays out the legal justification for killing US citizens with drone strikes. He’s not produced it, however. We did get a summary outline of the admin’s policy (to congress last year) So we’re left guessing what it actually limits or not. Similar documents were written by the office for legal council (esp by John Yoo) during the Bush the Lesser admin. Those documents essentially say the executive (president or his designee) can set up whatever process they want and so long as the executive says so, we can kill US citizens anywhere in the world for any reason (so long as you also say the word ‘terrorism’). Given the abuse of FBI sneek and peek (for terrorism only) and the on-going dissembling from Holder and others, it’s a reasonable inference that the current policy allows for the president to order a drone strike against US citizens sitting at a cafe in Somewhere U.S.A.

I agree that this sounds like an absurd outcome and fundamentally not the rule of law but as best as I* can tell I’m not in looney-ville on this one.

With due respect, Prof. Singham, I think there is some subtle goalpost wiggling involved in this argument. (my emphasis)

Senator Rand Paul conducted an old-fashioned six-hour long talking filibuster on the floor of the US Senate against the nomination of John Brennan to head the CIA because he was rightly concerned that the Obama administration would not state unequivocally that the answer was ‘no’ to the question “Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial?”

The answer isn’t ‘no’ for fairly obvious reasons, which is why the post headline adds the word “non-combatant.” Heck, this question is so poorly phrased that the authority he asks about is routinely delegated to rank and file law enforcement personnel. It’s even reserved to civilians in most or possibly all jurisdictions. I think there is a strong case to be made that that reservation to civilians is an unenumerated right under the 9th amendment.

Cruz’s question is better, but persists in including the phrases “U.S. citizen”, U.S. soil”, and “drone”. In my opinion none of these has any bearing on the matter. The 5th amendment due process clause to which Cruz is referring applies to “any person”, not to US citizens. It makes no mention of territory, so it binds the US government wherever it operates. Drones are just a technology, there’s no colorable argument to be made that distinguishes them from directly piloted airstrikes, or even from a sniper.

(The “US soil” point does have some relevance in relation to the Posse Comitatus Act of 1878, but Cruz’s question asks what “the constitution allow[s]”, so there are offsetting pedantic points to be made here.)

In my opinion the key issue here is one of imminence of threat, a topic where the administration can quite rightly be harshly criticized for both their position and their handling of it.

It appears to some that there is a need for strikes against enemies who are hiding in areas where the only access would be very dangerous for law enforcement (broadly construed) personnel. The opportunities to make such strikes may arise rarely, and so they may be authorized well before they occur. Because the timing is set by opportunity it is not in general coincident with the target being actively engaged in the behavior for which he or she is being targeted. I’m not 100% persuaded of this need, but the very least that can be said is that lots and lots of people with close experience have come to that conclusion. I’d say I’m about 15% convinced.

Taking the assumption that such strikes are a necessity of “modern warfare” for the purpose of explaining what I think we should do about it if we are going to do it:

Needless to say, I think we should first re-re-define imminence to mean what it has historically meant. (This alone settles Paul’s concern but not the concern of Cruz or the post headline.) Having done so we should pass a law explicitly constraining the circumstances under which these standing orders to target people may be issued. On application for such an order/warrant, the executive should be required to notify the Congress of the targeted person’s identity. The executive should be required to post notices in major world news outlets and local outlets in the area(s) where the targeted person is thought to live. The notices should offer the targeted person 30 days to turn himself or herself in to US custody. (Or ideally to UN custody, but that is a longer term goal…) Only after those 30 days should the order/warrant take effect. On application of any sitting congressperson, any currently open orders/warrants should be rescinded as soon as is operationally possible, or what one federal regulation with which I am familiar calls “immediately, and by the most expeditious means available”, which I think is a good way to put it.